Corporate Personhood is a legal fiction. The choice of the word
"person" arises from the way the 14th Amendment to the
U.S. Constitution was worded and from earlier legal usage of the
word person. A corporation is an artificial entity, created by
the granting of a charter by a government that grants such charters.
Corporation in this essay will be confined to businesses run for
profit that have been granted corporate charters by the States
of the United States. The Federal Government of the United States
usually does not grant corporate charters to businesses (exceptions
include the Post Office and Amtrak).

Corporations are artificial entities owned by stockholders,
who may be humans or other corporations. They are required by
law to have officers and a board of directors (in small corporations
these may all be the same people). In effect the corporation is
a collective of individuals with a special legal status and privileges
not given to ordinary unincorporated businesses or groups of individuals.

Obviously a corporation is itself no more a person (though
it is owned and staffed by persons) than a locomotive or a mob.
So why, in the USA, is a corporation considered to be a person
under law?

In the United States of America all natural persons (actual
human beings) are recognized as having inalienable rights. These
rights are recognized, among other places, in the Bill of Rights
and the 14th Amendment.

Corporate personhood is the idea (legal fiction, currently
with force of law) that corporations have inalienable rights (sometimes
called constitutional rights) just like real, natural, human persons.

That this idea has the force of law both resulted from the
power and wealth of the class of people who owned corporations,
and resulted in their even greater power and wealth. Corporate
constitutional rights effectively invert the relationship between
the government and the corporations. Recognized as persons, corporations
lose much of their status as subjects of the government. Although
artificial creations of their owners and the governments, as legal
persons they have a degree of immunity to government supervision.
Endowed with the court-recognized right to influence both elections
and the law-making process, corporations now dominate not just
the U. S. economy, but the government itself.

The History of Corporate Personhood

Corporations were detested by the colonial rebels in 1776 when
the Declaration of Independence severed the States from Great
Britain. There had been only a few corporations in colonial America,
but they had been very powerful. The Dutch West India Company
had founded New York. Corporations had effectively governed Virginia,
Maryland and the Carolinas. The political history of the colonies
up until 1776 was largely one of conflict between citizens trying
to establish rule by elected government and the corporations or
King ruling through appointed governors.

The new nation or confederation of 13 sovereign states had
few native business corporations. The corporations that survived
the revolution were mainly non-profit institutions such as colleges
[Dartmouth College v. Woodward, 17 U.S. 518 (1819)]. There was
not a single bank in the United States until 1780. Most of that
first bank's stock was owned by the confederate (what we would
later call Federal) government, and the bank's charter was revoked
in 1785. "The agrarian charges were numerous... the bank
was a monstrosity, an artificial creature endowed with powers
not possessed by human beings and incompatible with the principles
of a democratic social order." [Hammond, Bray , Banks
and Politics in America from the Revolution to the Civil War (Princeton:
Princeton University Press, 1991), pp. 48-54] By 1790 four banks
had been granted corporate charters by states, but these banks
were not originally purely private institutions. They served as
financial institutions for the states that chartered them. [Ibid.
65-67]

The federal Constitution of 1788 did not mention corporations
at all. But in the late 1700's and early 1800's corporations began
to be chartered by the states. This was not without opposition.
Thomas Jefferson said, "I hope we shall crush in its birth
the aristocracy of our moneyed corporations which dare already
to challenge our government in a trial of strength, and bid defiance
to the laws of our country."

Like the banks, other early corporations were closely supervised
by the state legislatures that granted their charters. When the
Supreme Court of the United States in Dartmouth College v. Woodward
in 1819, ruled that Dartmouth's charter granted in 1769 by King
George III was a contract and could not be revoked by the New
Hampshire legislature, a public outcry ensued. State courts and
legislatures, supported by the people, declared that state governments
had an absolute right to amend or repeal a corporate charter.
[Richard L Grossman and Frank T. Adams, Taking Care of Business,
Citizenship and the Charter of Incorporation (Cambridge:
Charter, Ink., 1993), p. 11-12]

Until 1886 corporations were not considered persons. It was
clear what they were: artificial creations of their owners and
the state legislatures. They were regulated and taxed. They could
sue and be sued. They were subject to all of the laws of the land
as well as any restrictions placed in their charters. But from
1819 until 1886 the wealthiest business people sought to use the
Federal government, particularly the courts, to get their corporations
out from under the control of the states and their citizens.

During the 1800's the United States went through an enormous
economic expansion, sometimes called the Industrial Revolution,
but that term is misleading. The United States expanded geographically
by grabbing native American Indian territories formerly claimed
by France, Great Britain, and Mexico. The population exploded.
Farm production exploded, and international trade exploded, with
U.S. grain feeding both growing U.S. cities and Europe. Manufacturing
in the U.S., protected by tariffs from British competition, also
progressed rapidly. The favored form for large businesses became
the corporation. And as these corporations came to dominate business
life, they also began to dominate America's politicians, lawyers,
courts and culture.

The Civil War accelerated the growth of manufacturing and the
power of the men who owned the corporations. After the war corporations
began a campaign to throw off the legal shackles that had held
them in check. The systematic bribing of Congress was instituted
by Mark Hanna, sugar trust magnate Henry Havemeyer, and Senator
Nelson Aldrich and their associates. [Jonathan Shepard Fast and
Luzviminda Bartolome Francisco, Conspiracy For Empire, Big
Business, Corruption and the Politics of Imperialism in America,
1876-1907 (Quezon City, Foundation for Nationalist Studies,
1985), p. 92-97] Most Supreme Court judges who were appointed
were former corporate lawyers.

In 1886 the supreme court justices were Samuel F. Miller, Stephen
J. Field, Joseph P. Bradley, John M. Harlan, Stanley Matthews,
William B. Woods, Samuel Blatchford, Horace Gray, and chief justice
Morrison. R. Waite. Never heard of a one of them? These men subjected
African Americans to a century of Jim Crow discrimination; they
made corporations into a vehicle for the wealthy elite to control
the economy and the government; they vastly increased the power
of the Supreme Court itself over elected government officials.
How quaint they are forgotten names. In all fairness, Justice
Harlan dissented from the infamous Plessy v. Ferguson decision
[163 U.S. 537 (1896)], which, as he said, effectively denied the
protection of the 14th Amendment to the very group of people (former
slaves and their descendants) for whom it was designed.

In 1868 the 14th Amendment to the United States Constitution
had become law. Section 1 of that Amendment states:

SECTION 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

"The one pervading purpose . . . [of the 14th Amendment]
was the freedom of the slave race, the security and firm establishment
of that freedom, and the protection of the newly-made freeman
and citizen from the oppression of those who had formerly exercised
unlimited dominion over him." That is exactly what Justice
Samuel F. Miller said in 1873 in one of the first Supreme Court
opinions to rule on the 14th Amendment. [83 U.S. 36, 81 (1873)]

But the wealthy, powerful men who owned corporations wanted more
power for their corporations. Their lawyers came up with the idea
that corporations, which might be said to be groups of persons
(though one person might in turn belong to (own stock in) many
corporations), should have the same constitutional rights as persons
themselves. If they could get the courts to agree that corporations
were persons, they could assert that the States, which had chartered
the corporations, would then be constrained by the 14th Amendment
from exercising power over the corporations.

Beginning in the 1870's corporate lawyers began asserting that
corporations were persons with many of the rights of natural persons.
It should be understood that the term "artificial person"
was already in long use, with no mistake that corporations were
claiming to have the rights of natural persons. "Artificial
person" was used because there were certain resemblances,
in law, between a natural person and corporations. Both could
be parties in a lawsuit; both could be taxed; both could be constrained
by law. In fact the corporations had been called artificial persons
by courts in England as early as the 16th century because lawyers
for the corporations had asserted they could not be convicted
under the English laws of the time because the laws were worded
"No person shall..."

The need to be freed from legislative and judicial constraints,
combined with the use of the word "person" in the U.S.
Constitution and the concept of the "artificial person,"
led to the argument that these "artificial persons"
were "persons" with an inconsequential "artificial"
adjective appended. If it could be made so, if the courts would
accept that corporations were among the "persons" talked
about by the U.S. Constitution, then the corporations would gain
considerably more leverage against legal restraint.

These arguments were made by corporate lawyers at the State
level, in court after court, and many judges, being former corporate
attorneys and usually at least moderately wealthy themselves,
were sympathetic to any argument that would strengthen corporations.
There was a national campaign to get the legal establishment to
accept that corporations were persons. This cumulated in the Santa
Clara decision of 1886, which has been used as the precedent for
all rulings about corporate personhood since then.

Though it is not yet clear who hatched this plan or where the
campaign began, the early cases mainly concerned railroads. In
the late 1800's railroads were the most powerful corporations
in the country. Most of the nation's farmers were dependent on
them to haul their produce; even the manufacturing corporations
were at their mercy when they needed coal, iron ore, finished
iron, or any other materials transported. That the lawyers for
the railway corporations had planned a national campaign to make
corporations full, unqualified legal persons is demonstrated by
the Supreme Court making several decisions in which this was an
issue in 1877. In four cases that reached the Supreme Court [94
U.S. 155, 94 U.S. 164, 94 U.S. 179, 94 U.S. 180 (1877)] it was
argued by the railroads that they were protected by the 14th Amendment
from states regulating the maximum rates they could charge. In
each case the Court did not render an opinion as to whether corporations
were persons covered by the 14th Amendment. Bypassing that issue,
they said that the 14th Amendment was not meant to prevent states
from regulating commerce.

Similarly, in 1877, in Munn v. Illinois [94 U.S. 113 (1876)],
the Supreme Court decided that the 14th Amendment did not prevent
the State of Illinois from regulating charges for use of a business's
grain elevators, ignoring the question of whether Munn & Scott
was a person. Later, in Northwestern Nat Life Ins. Co. v. Riggs
[203 U.S. 243 (1906)], having accepted that corporations are people,
the court still ruled that the 14th Amendment was not a bar to
many state laws that effectively limited a corporations right
to contract business as it pleases.

Calling silence a victory, from 1877 to 1886 corporate lawyers
assumed that corporations were persons, and their opponents argued
that they were not. In Santa Clara County v. Southern Pacific
Railroad Company [118 U.S. 394 (1886)], at the lower court levels
the question of whether corporations were persons had been argued,
and these arguments were submitted in writing to the Court. However,
before oral argument took place, Chief Justice Waite announced:
"The court does not wish to hear argument on the question
whether the provision in the Fourteenth Amendment to the Constitution,
which forbids a State to deny to any person within its jurisdiction
the equal protection of the laws, applies to these corporations.
We are all of the opinion that it does."

It is not half as strange that the Supreme Court judges would
render such an opinion, given their allegiance to the propertied
class, as the way that they rendered it. These guys loved to write
long-winded, complex opinions; look at any Supreme Court opinion
of the time (or any time) and you'll see that. This question had
never been covered in a Supreme Court decision; it had been avoided.
Here was the perfect chance for any of nine Supreme Court judges
to make his place in history. All declined. No one wanted to explain
how an amendment about ex-slaves had converted artificial entities
into the legal equivalent of natural persons.

This opinion without explanation, given before argument had
even been heard, became the law of the United States of America.
No state or federal legislature passed it or even discussed; no
Amendment to the Constitution was deemed necessary; the citizens
were simply informed that they had a mistaken view about corporations,
if they were informed at all. Future Supreme Courts refused to
even consider the question, preferring to build on it, though
occasionally future justices would try to raise the question again.

Was the 14th Amendment about corporations? One of the 1886
judges, Samuel F. Miller, had not thought so in 1872, only 6 years
after the Amendment had become law, when the court was "called
upon for the first time to give construction to these articles."
In the Slaughterhouse Cases [83 U.S. 36 (1872)], he stated (and
I quote at length because it is important not only to the question
of corporate personhood, but to the question of civil rights):

The most cursory glance at these articles discloses
a unity of purpose, when taken in connection with the history
of the times, which cannot fail to have an important bearing on
any question of doubt concerning their true meaning. Nor can such
doubts, when any reasonably exist, be safely and rationally solved
without a reference to that history, for in it is found the occasion
and the necessity for recurring again to the great source of power
in this country, the people of the States, for additional guarantees
of human rights, additional powers to the Federal government;
additional restraints upon those of the States. Fortunately, that
history is fresh within the memory of us all, and its leading
features, as they bear upon the matter before us, free from doubt.

The institution of African slavery, as it existed
in about half the States of the Union, and the contests pervading
the public mind for many years between those who desired its curtailment
and ultimate extinction and those who desired additional safeguards
for its security and perpetuation, culminated in the effort, on
the part of most of the States in which slavery existed, to separate
from the Federal government and to resist its authority. This
constituted the war of the rebellion, and whatever auxiliary causes
may have contributed to bring about this war, undoubtedly the
overshadowing and efficient cause was African slavery.
...

They [Negroes] were in some States forbidden
to appear in the towns in any other character than menial servants.
They were required to reside on and cultivate the soil without
the right to purchase or own it. They were excluded from many
occupations of gain, and were not permitted to give testimony
in the courts in any case where a white man was a party. It was
said that their lives were at the mercy of bad men, either because
the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood
or misconception may have been mingled with their presentation,
forced upon the statesmen who had conducted the Federal government
in safety through the crisis of the rebellion, and who supposed
that, by the thirteenth article of amendment, they had secured
the result of their labors, the conviction that something more
was necessary in the way of constitutional protection to the unfortunate
race who had suffered so much. They accordingly passed through
Congress the proposition for the fourteenth amendment, and they
declined to treat as restored to their full participation in the
government of the Union the States which had been in insurrection
until they ratified that article by a formal vote of their legislative
bodies.

. . .

We repeat, then, in the light of this recapitulation
of events, almost too recent to be called history, but which are
familiar to us all, and on the most casual examination of the
language of these amendments, no one can fail to be impressed
with the one pervading purpose found in them all, lying at the
foundation of each, and without which none of them would have
been even suggested; we mean the freedom of the slave race, the
security and firm establishment of that freedom, and the protection
of the newly made freeman and citizen from the oppressions of
those who had formerly exercised unlimited dominion over him.

It has been argued that the men who wrote the 14th Amendment
specifically meant for the word person to be a loophole which
you could drive a giant corporation through. Apparently in one
of the railroad cases an attorney who had been on the committee
that drafted the amendment waived a paper before the court claiming
that it documented such; but the paper was not entered as evidence,
nor apparently was it shown to anyone, nor was it saved. However,
careful research has shown that, John A. Bingham the member of
Congress who is known to have been chiefly responsible for the
phraseology of Section One when it was drafted by the Joint Committee
in 1866, had, during the previous decade and as early as 1856-1859,
employed not one but all three of the same clauses and concepts
he later used in Section One. More important still, Bingham employed
these guarantees specifically and in a context which suggested
that free Negroes and mulattoes rather than corporations and business
enterprise unquestionably were the persons' to which he then referred.
[Graham, Howard Jay, Everyman's Constitution, State Historical
Society of Wisconsin, 1968][See also Graham, Howard Jay, AThe Conspiracy Theory of
the Fourteenth Amendment,@The Yale Law Journal, Vol. 47: 341, 1938]

Before the Supreme Court determined that corporations were
persons and hence had constitutional rights female citizens had
decided that the Fourteenth Amendment should be interpreted to
give them the right to vote. In Minor v. Happersett the Supreme
Court ruled that "women" were not persons for the purposes
of the Fourteenth Amendment.

The moral and legal depravity of the Supreme Court during this
period (though of course they saw their job as securing the property
of those of their class), and the absurdity of treating corporations
as persons with natural and constitutionally recognized rights,
is illustrated by the deterioration of the legal position of the
former slaves and their descendants during this time. A series
of Supreme Court judgements [92 U.S. 214 (1875), 92 U.S. 542 (1875),
106 U.S. 629 (1882), 109 U.S. 3 (1883)] of cases where men classified
as Negroes sought the protection of the 14th Amendment narrowed
the scope of that protection. Finally, in the infamous Plessy
v. Ferguson [163 U.S. 537 (1896)] decision, the Supreme Court
ruled that a man who was 1 part slave by ancestry and 7/8 of white/free
ancestry could be forced to sit in a Aseparate
but equal" section of a passenger train. In effect this decision
declared people with non-European ancestors to not be persons
with constitutional rights. The decision would not be overruled
by a future Supreme Court until Brown v. Board of Education in
1954.

Only justice John M. Harlan dissented in Plessy v. Ferguson.
Of the justices who had ruled that corporations were people in
Santa Clare v. Southern Pacific, three were still justices and
rules that natural persons of the wrong skin color were not persons
in Plessy v. Ferguson. These infamous three were Stephen J. Field,
Samuel Blatchford, and Horace Gray.

Two Supreme Court judges, Hugo Black and William O. Douglas,
later rendered opinions attacking the doctrine of corporate personhood.
I supply here most of justice Black's opinion:

But it is contended that the due process clause
of the Fourteenth Amendment prohibits California from determining
what terms and conditions should be imposed upon this Connecticut
corporation to promote the welfare of the people of California.

I do not believe the word 'person' in the Fourteenth
Amendment includes corporations. 'The doctrine of stare decisis,
however appropriate and even necessary at times, has only a limited
application in the field of constitutional law.' This Court has
many times changed its interpretations of the Constitution when
the conclusion was reached that an improper construction had been
adopted. Only recently the case of West Coast Hotel Company v.
Parrish, 300 U.S. 379, 57 S.Ct. 578, 108 A.L.R. 1330, expressly
overruled a previous interpretation of the Fourteenth Amendment
which had long blocked state minimum wage legislation. When a
statute is declared by this Court to be unconstitutional, the
decision until reversed stands as a barrier against the adoption
of similar legislation. A constitutional interpretation that is
wrong should not stand. I believe this Court should now overrule
previous decisions which interpreted the Fourteenth Amendment
to include corporations.

Neither the history nor the language of the
Fourteenth Amendment justifies the belief that corporations are
included within its protection [303 U.S. 77, 86]. The historical
purpose of the Fourteenth Amendment was clearly set forth when
first considered by this Court in the Slaughter House Cases, 16
Wall. 36, decided April, 1873-less than five years after the proclamation
of its adoption. Mr. Justice Miller, speaking for the Court, said:

'Among the first acts of legislation adopted
by several of the States in the legislative bodies which claimed
to be in their normal relations with the Federal government, were
laws which imposed upon the colored race onerous disabilities
and burdens, and curtailed their rights in the pursuit of life,
liberty, and property to such an extent that their freedom was
of little value, while they had lost the protection which they
had received from their former owners from motives both of interest
and humanity.

'These circumstances, whatever of falsehood
or misconception may have been mingled with their presentation,
forced ... the conviction that something more was necessary in
the way of constitutional protection to the unfortunate race who
had suffered so much. (Congressional leaders) accordingly passed
through Congress the proposition for the fourteenth amendment,
and ... declined to treat as restored to their full participation
in the government of the Union the States which had been in insurrection,
until they ratified that article by a formal vote of their legislative
bodies.' 16 Wall. 36, at page 70.

Certainly, when the Fourteenth Amendment was
submitted for approval, the people were not told that the states
of the South were to be denied their normal

relationship with the Federal Government unless
they ratified an amendment granting new and revolutionary rights
to corporations. This Court, when the Slaughter House Cases were
decided in 1873, had apparently discovered no such purpose. The
records of the time can be searched in vain for evidence that
this amendment was adopted for the benefit of corporations. It
is true [303 U.S. 77, 87] that in 1882, twelve years after its
adoption, and ten years after the Slaughter House Cases, supra,
an argument was made in this Court that a journal of the joint
Congressional

Committee which framed the amendment, secret
and undisclosed up to that date, indicated the committee's desire
to protect corporations by the use of the word 'person.' Four
years later, in 1886, this Court in the case of Santa Clara County
v. Southern Pacific Railroad, 118 U.S. 394, 6 S.Ct. 1132, decided
for the first time that the word 'person' in the amendment did
in some instances include corporations. A secret purpose on the
part of the members of the committee, even if such be the fact,
however, would not be sufficient to justify any such construction.
The history of the amendment proves that the people were told
that its purpose was to protect weak and helpless human beings
and were not told that it was intended to remove corporations
in any fashion from the control of state governments. The Fourteenth
Amendment followed the freedom of a race from slavery. Justice
Swayne said in the Slaughter Houses Cases, supra, that: 'By 'any
person' was meant all persons within the jurisdiction of the State.
No distinction is intimated on account of race or color.' Corporations
have neither race nor color. He knew the amendment was intended
to protect the life, liberty, and property of human beings.

The language of the amendment itself does not
support the theory that it was passed for the benefit of corporations.

The first clause of section 1 of the amendment
reads: 'All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.' Certainly a corporation
cannot be naturalized and 'persons' here is not broad enough to
include 'corporations.'

The first clause of the second sentence of
section 1 reads: 'No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States.' While efforts have been made to persuade this
Court to allow corporations to claim the protection of his clause,
these efforts have not been successful.

The next clause of the second sentence reads:
'Nor shall any State deprive any person of life, liberty, or property,
without due process of law.' It has not been decided that this
clause prohibits a state from depriving a corporation of 'life.'
This Court has expressly held that 'the liberty guaranteed by
the 14th Amendment against deprivation without due process of
law is the liberty of natural, not artificial persons.' Thus,
the words 'life' and 'liberty' do not apply to corporations, and
of course they could not have been so intended to apply. However,
the decisions of this Court which the majority follow hold that
corporations are included in this clause in so far as the word
'property' is concerned. In other words, this clause is construed
to mean as follows:

'Nor shall any State deprive any human being
of life, liberty or property without due process of law; nor shall
any State deprive any corporation of property without due process
of law.'

The last clause of this second sentence of
section 1 reads: 'Nor deny to any person within its jurisdiction
the equal protection of the laws.' As used here, 'person' has
been construed to include corporations. [303 U.S. 77, 89] Both
Congress and the people were familiar with the meaning of the
word 'corporation' at the time the Fourteenth Amendment was submitted
and adopted. The judicial inclusion of the word 'corporation'
in the Fourteenth Amendment has had a revolutionary effect on
our form of government. The states did not adopt the amendment
with knowledge of its sweeping meaning under its present construction.
No section of the amendment gave notice to the people that, if
adopted, it would subject every state law and municipal ordinance,
affecting corporations, (and all administrative actions under
them) to censorship of the United States courts. No word in all
this amendment gave any hint that its adoption would deprive the
states of their long-recognized power to regulate corporations.

The second section of the amendment informed
the people that representatives would be apportioned among the
several states 'according to their respective numbers, counting
the whole number of persons in each State, excluding Indians not
taxed.' No citizen could gather the impression here that while
the word 'persons' in the second section applied to human beings,
the word 'persons' in the first section in some instances applied
to corporations. Section 3 of the amendment said that 'no person
shall be a Senator or Representative in Congress,' (who 'engaged
in insurrection'). There was no intimation here that the word
'person' in the first section in some instances included corporations.

This amendment sought to prevent discrimination
by the states against classes or races. We are aware of this from
words spoken in this Court within five years after its adoption,
when the people and the courts were personally familiar with the
historical background of the amendment. 'We doubt very much whether
any action of a State not directed by way of discrimination against
[303 U.S. 77, 90] the negroes as a class, or on account of their
race, will ever be held to come within the purview of this provision.'
Yet, of the cases in this Court in which the Fourteenth Amendment
was applied during the first fifty years after its adoption, less
than one-half of 1 per cent invoked it in protection of the negro
race, and more than 50 per cent. asked that its benefits be extended
to corporations.

If the people of this nation wish to deprive
the states of their sovereign rights to determine what is a fair
and just tax upon corporations doing a purely local business within
their own state boundaries, there is a way provided by the Constitution
to accomplish this purpose. That way does not lie along the course
of judicial amendment to that fundamental charter. An amendment
having that purpose could be submitted by Congress as provided
by the Constitution. I do not believe that the Fourteenth Amendment
had that purpose, nor that the people believed it had that purpose,
nor that it should be construed as having that purpose.

Justice Black was not alone in his questioning of the legitimacy
of corporate personhood. Justice Douglas, dissenting in Wheeling
Steel Corp. v. Glander [337 U.S. 562 (1949)], gave an opinion
similar to, but shorter than, the one quoted above, to which Justice
Black concurred.

Why Corporate Constitutional Rights Are Anti-democratic

Is corporate personhood (including the whole range of corporate
constitutional rights) a bad thing? If you are a wealthy corporate
stockholder who doesn't care about the environment or the fate
of less wealthy human beings, the answer is no. In fact corporate
personhood is right up there with corporations=
limited liability as one of the good things in life. For the rest
of us corporate personhood is a very bad thing.

Corporate personhood changes the relationship between people
and corporations and between corporations and the government,
and even between government and the people. The effects of this
change in relationships range from loss of liberty and income
for citizens to the destruction and poisoning of the earth and
the corruption of the U.S. governments (including state and local
governments). As outlined in the Declaration of Independence,
the Articles of Confederation, the Constitution, the Federalist
Papers, and the Anti-Federalist Papers, government derives its
powers and responsibilities from the people. Corporations, chartered
by governments, are subject to the people with the government
acting as an intermediary. Corporate personhood allows the wealthiest
citizens to use corporations to control the government and use
it as an intermediary to impose their will upon the people. It
is this basic about-face from democracy that should most concern
us. But because of our corrupted legal system, corporate media,
and corrupted elected officials, social activists usually focus
their efforts on the bad, even horrible, results of corporate
control of government and society. Reformers run around trying
to get bureaucrats to enforce the minimalist regulations that
have been enacted into law, rather than finding a way to prevent
the corporate lawyers and lobbyists from writing the laws.

Take, for instance, the Environmental Protection Agency (EPA)
and its feeble attempts to clean up the most toxic sites in the
United States. Almost all of these sites were created by large
corporations. Regulation of corporations was traditionally left
to State governments; the Federal government regulated only interstate
commerce (though in the 20th century it increasingly used its
power to regulate interstate commerce as a means to regulate all
commerce). Why did the State governments not prevent the creation
of toxic sites in the first place?

One might claim that there was simply, in the past, a lack
of knowledge on everyone's part about the environment and the
dangers of toxins. This theory does not stand up to analysis.
Poisoning wells was a crime from the earliest of times. Government
standards for food purity and safety go back to at least the Middle
Ages. Sanitation laws came into common existence in the U.S. during
the 19th century. But toxic sites were the result of
toxic dumping by large industrial corporations. They dumped toxic
byproducts into the air, into waterways, and onto the ground.
They continue to do so today with environmental law written to
give them permission to pollute up to specified levels, and even
at higher levels if they are willing to pay small fines. In addition,
they have used their political power to force taxpayers to pay
to clean corporate toxic spills. In some cases they have escaped
financial liability through the corporate bankruptcy laws, which
limit the liability of stockholders. Billions of dollars that
were paid out in dividends to stockholders cannot be reclaimed
by the people in order to cover the costs of toxic cleanup at
taxpayers' expense.

After corporations were given personhood and constitutional
rights in 1886 state governments began to find that attempts to
regulate corporations were thwarted both by Supreme Court decisions
and the Arace to the
bottom." The immediate effect of the Santa Clara decision
was the protection of corporations from some (but not all) state
regulation; state regulations could be tested in federal courts
to see if they violated the corporations constitutional rights.
If a state successfully, and with federal court approval, prohibited
an industry from dumping waste in streams and rivers (and actually
enforced such a law) the industry would simply move to a state
that had no such law or enforced it laxly.

In recent decades the Supreme Court has ruled that corporations
have the Fourth Amendment constitutional right to freedom from
random inspection [See v. City of Seattle, 387 U.S 541 (1967)
and Marshall v. Barlow=s,
Inc., 436 U.S. 307 (1978), among others]. Without random inspections
it is virtually impossible to enforce meaningful anti-pollution,
health, and safety laws.

What would it take to make corporations stop polluting and
pay to clean up the messes they have created? They would have
to be prohibited from lobbying, they would have to be prohibited
from contributing to political campaigns, they would need to lose
their limited liability status, they would need to have their
charters limited and enforced, they would need to be subject to
inspections without warrants, and they would have to have their
ability to buy decisions in their favor in the courts ended. In
order to remove any of this set of privileges we would need to
make it legally clear that they do not have corporate personhood
or the constitutional rights the courts pretend go with it.

Or consider subsidized corporate timber harvesting on government
lands. One might see this as a case of simple, raw economic and
political power. The timber companies wish to grab (privatize)
the profits in a situation and pawn off (socialize) the costs
by charging them to the taxpayers. They do this by writing the
laws governing the sale of timber. It is sold cheap, and the government
does not take into account its own costs (administration, building
roads, etc.) in setting prices. The net result is that taxpayers
loose money, the timber industry makes profits, and the environment
is managed in an unsound manner. Corporate personhood does not,
in itself, cause laws to be written to subsidize the wealthy holders
of timber company stock with the income taxes laid on the backs
of ordinary wage earners. But it has created the situation is
which corporations are free to lobby and corrupt the political
process. To prevent them from lobbying and contributing to political
campaigns we must revoke their corporate personhood and constitutional
rights.

Look at the recent consolidation of the media, from bookstores
to cable television empires. This is part of the process of putting
Americans in chains. Corporations are able to stifle individual
liberty by driving out small local businesses and replacing them
with cloned outlets. What does that have to do with corporate
personhood? Well, some people, realizing that in the long run
local communities prosper with locally owned businesses, have
tried to limit the corporate chain's right unlimited expansion.
In the case of Liggett v. Lee [288 U.S. 517 (1933)] the State
of Florida had imposed a filing fee for licenses for stores that
was progressive: a person opening one store would pay a $5.00
fee, whereas a large chain was required to pay $30.00 per store.
J. C. Penny Company challenged the law and the Supreme Court of
the U.S. ruled that this law violated the 14th Amendment's principle
of equal protection. This was at a time when the Jim Crow system
of discrimination against blacks was at its height; blacks were
still not considered persons protected by the 14th Amendment,
but corporations were. Judge Brandeis's dissent in the case is
well worth reading for anyone interested in a critique of the
growth of corporate power up to 1933.

If terrorists had tried to bomb independent bookstores out
of existence in the 1990's, people would have been demanding police
protection for our neighborhood bookstores. Instead the independents,
which had survived fairly well against the earlier versions of
bookstore chains, were bombed (economically) by Barnes & Noble
and Borders. Now independent book publishers, who had long struggled
to survive against the big corporate publishing empires, can have
their books effectively censored by two Abuyers", one working at each
of the chains. Now the dream of owning a small bookstore and carrying
the books that you love has been replaced by the nightmare of
being a low-paid clerk in a chain bookstore. Corporate personhood
offers little or no advantage to small, local stores and businesses:
it is of advantage only to the national and international corporations.

The book industry is just one segment of the media industry
that has consolidated at an accelerating pace at the end of the
20th Century. Laws could have been enacted insuring a multitude
of voices on the radio and TV and in newspapers and magazines,
but instead we are subjected to one voice: the voice of money.
Endowed with corporate personhood, the media corporations have
been able to lobby and influence politicians (with campaign contributions)
to allow media empires to effectively extinguish meaningful freedom
of the press in the United States.

Compare the position of most real persons in the U.S. at present.
Most real persons are lucky if they can shake their congressperson's
hand; few of us have the power to talk to any congressman on any
committee that might help our personal interests. Most real persons
were not consulted before Congress acted recently to toss out
the New Deal era banking laws, allow the consolidation of the
media industry, or change the rules for personal bankruptcy. But
multinational corporations have unlimited access to Congress.
They buy that access with campaign contributions (and often, lucrative
jobs for ex-Congresspersons). The public is told what to think
by a (almost always) unified media voice. The public is usually
not even told when critical anti-democratic or economic changes
are being considered by Congress.

Because of corporate personhood and corporate constitutional
rights, the ordinary, natural person has become a second-class
person in the eyes of the law. A person who has to work for wages
as a corporate employee loses his Constitutional rights (such
as free speech) when he steps onto corporate property, according
to the courts. In any dispute he has with a corporate person he
is confronted with the economic penalty of having to buy justice
from lawyers and courts, which for the corporation is a tax-deductible
expense. For an international corporation a million dollars in
legal costs hardly affects the bottom line; for a real person,
a thousand dollars in legal costs may mean missing a rent or mortgage
payment. Even if ordinary people try to work together, as in a
labor union, they are not afforded the same privileges as a corporate
person.

Finally, look at the corporate contributions to politicians
and their overall ability to influence political thought through
the corporate media. Without ever giving a penny to a politician's
campaign the corporate media would have enormous control of the
political process through their ability to filter news and opinions.
Dependent on other out-of-control corporations for their own advertising
income, they have no reason to anger their real clients by impartially
reporting the news. When you add to that the enormous amounts
of money that corporations are able to use to affect the political
process you have the makings of absolute control of government
and society. There have been some efforts by states and the federal
government to put some mild restrictions on corporate campaign
spending. But in First National Bank of Boston v. Bellotti [435
U.S. 765 (1978)] the U.S. Supreme Court declared that corporate
persons have the same free speech rights as natural persons, and
could spend unlimited sums of money Aspeaking"
in the form of ads and campaign contributions. The Massachusetts
Supreme Court had unanimously upheld the validity of the campaign
finance reform law in question.

Summing up, corporate personhood is bad because it is the basis
of corporations being regarding by the Supreme Court with other
rights such as equal protection under the law, free speech, the
right to remain silent in criminal cases, and protection from
searches. These rights in turn have been used by the corporations
to corrupt our citizens, government and legal system, to treat
workers and small businesses as economic prey, and to destroy
the environment we all depend on to sustain life itself.

What would change if corporations lost personhood?

There are two broad areas that could change if we revoked corporate
personhood. One is directly related to corporations not being
persons for the purposes of the 1st, 4th, and 14th Amendments.
The other is the critically important secondary effect of what
can be achieved if we push corporations out of the political process,
which can be achieved only if we remove their personhood. Knowing
exactly what would or could change has to be based on what changes
have been made, or prevented, since the establishment of corporate
personhood as a legal principle in 1886.

Fortunately we do have a road map of sorts, a mirror image
of this issue. In 1896 the U.S. Supreme Court, in Plessy v. Ferguson,
effectively declared that Anegros"
were not protected by the Fourteenth Amendment, were not in fact
the persons it was meant to protect. In 1956 in Brown v. Board
of Education, the Supreme Court ruled so that suddenly ANegroes"
again became full legal persons. I hope I don't need to describe
the plight of African-Americans and other people of color during
the period from 1896 to 1956, nor will I recount the campaign
necessary to get the court to change its mind in 1956.

Were African-Americans (and others classified as non-white)
suddenly better off the day after the 1956 ruling? Potentially
yes, but factually no. It took years of protests, court cases,
legislative changes, changes in people's awareness and semantics,
and even many people's murders at the hands of those who opposed
change, before African-Americans began to be treated, legally,
socially, and economically, as citizens and persons. The process
is not yet complete.

When corporate personhood is terminated, whether it be by a
Supreme Court decision, an Amendment to the U.S. Constitution,
or by citizens and States recovering the power to govern themselves
democratically, the next day it may seem like nothing really has
changed. But the potential for change will be as great as it was
for people of color after Brown v. Board of Education.

Just as in 1956 you could predict that, finally guaranteed
the protection of the Federal Government under the Fourteenth
Amendment, people of color might soon be able to shop with white
people, have the vote, elect people of color to office, and make
substantial economic gains, we can predict what can happen after
the ending of corporate personhood. But these things will not
happen unless there are years of protests, court cases, legislation,
and changes in people's awareness. We can't predict the details,
but since we know what has been obstructed in the past, we can
see what freedoms the people might gain once we begin to end corporate
dominance.

Corporate personhood is at the root of such Supreme Court rulings
as First National Bank of Boston v. Bellotti [435 U.S. 765 (1978)],
which equate corporate donations to political campaigns with free
speech. They allow corporate money to govern the political process.
These rulings can be reversed once the 1886 decision is reversed,
since they are directly dependent upon it. Then we should be able
to force corporations out of the political process. We could do
this through legislation or through the chartering process. Without
personhood the corporations are not entitled to 1st Amendment
rights; they will have only what privileges the people, through
our government, gives them. We can and should prohibit them from
making any kind of contribution to politicians, to lobbying groups,
or to campaigns involving referenda. Any advertising that does
not sell products, that is, any advertising not presenting factual
information about the products or services a corporation offers,
should be prohibited.

Later in this essay the secondary effects of removing corporations
and their money from the political decision making (including
regulatory) process will be examined. First other changes that
are directly dependent upon revoking corporate personhood need
examining.

Without the protection of the 14th Amendment, corporations
could be purposefully discriminated against in legislation. It
would even become possible to discriminate against particular
types and sizes of corporations. The citizens would thereby gain
much greater control over the economy, both nationally and at
the local level. For instance, the Supreme Court in the past,
based on corporate personhood, has held that States and localities
cannot favor small or local businesses over corporate chain stores
or out-of-state businesses, as in Liggett v. Lee [288 U.S. 517
(1933)]. Towns that want all business to be local, or even that
want to keep out certain chains but allow others, will be able
to have that control, if they wish. They could also finally have
truly effective "bad boy" laws (which prohibit businesses
with criminal records from operating in a community), as opposed
to the current ineffective ones (because we'll be able to limit
corporations appeals to the courts).

Without personhood the due process used for corporations could
be different than the due process used for individuals or unincorporated
businesses. As an illustration, corporations might only be allowed
a single hearing when their actions effect an endangered species,
rather than the current system where they can spend millions of
dollars of their own money, and of taxpayer money, and of the
non-profit environmental groups that oppose them, in an unending
series of appeals and diversionary legal filings.

Another example would be that corporate charters, granted by
the states, might channel certain types of corporate wrongdoing
into special courts where justice is swift and stern, including
the immediate closing of businesses that violate environmental,
consumer safety, or labor laws.

Another important constitutional "right" given to
corporations is protection under the 4th Amendment, which states,
AThe right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place
to be searched, and the persons to be seized." The key
Supreme Court decision here was Hale v. Henkel [201 U.S. 43 (1906)],
which established that corporations have protection under the
4th Amendment based in part on their status as persons. It was
decided that a subpoena issued by a federal grand jury to the
secretary of a corporation, MacAndrews & Forbes Company, amounted
to such an unreasonable search and seizure. This ruling made it
difficult to enforce the Sherman anti-monopoly act, which naturally
required the papers of corporations in order to determine if there
existed grounds for an indictment. Oddly the same ruling recognized
it would be very hard to give the 5th Amendment right that "nor
shall any person ... be compelled in any criminal case to be a
witness against himself," because a corporation, not being
a natural person, cannot testify at all. It can be represented
in court by natural persons, who cannot take the 5th on the corporation's
behalf, because you only have the right to not incriminate yourself;
you have no immunity to testifying against other persons.

The importance of the 4th Amendment right of corporate persons
is shown, among other places, in Marshall v. Barlow's, Inc. [436
U.S. 307 (1978)]. The Occupational Safety and Health Act of 1970
(OSHA), enacted to try to get employees safe working environments,
allowed for surprise inspections of workplaces. These inspections
were struck down by the Supreme Court, which declared that OSHA
inspections required either the corporation's permission or a
warrant. Apparently the constitutional personhood rights of corporations
trump the rights of real persons. Thousands of workers have died,
been maimed, or poisoned since 1978, while on the job; many of
these accidents were preventable, but the Supreme Court did not
consider the liberty of the workers, only the liberty of corporations
and their wealthy owners in making this murderous decision. No
workplace that follows OSHA safety rules need fear a surprise
inspection.

Revoking corporate personhood and 4th Amendment rights for
corporations would allow the government to make reasonable inspections
to insure worker safety, to insure that toxic substances are not
being emitted, and to insure that corporations are operating as
allowed by their charters and the law. Revoking personhood should
not be feared by law-abiding, legitimate businesses and corporations
who are obeying the law.

We now return to the possible secondary results of ending corporate
personhood and getting corporations out of the political process.

With corporations out of the political process the whole nature
of regulation would change for the better. Whether regarding the
environment or food safety, we would not have to compromise with
powerful corporate political machines. Do the people want to prohibit
clear-cutting? Then the laws will prohibit clear-cutting, because
no politician will be on a wood-products corporation's payroll.
Do the people want zero emissions into streams and rivers? Then
the law will prohibit any and all toxic emissions, because the
politicians will rely on people for votes, not on polluting corporations
for money to buy votes.

The main roadblock to single-payer, national health care has
been the enormous amount of lobbying and campaign contributions
from those corporations that profit from the current system. By
prohibiting corporate-sponsored campaign contributions to politicians
and corporate-sponsored propaganda on television, the national
consensus in favor of national health care could no longer be
thwarted.

Ending corporate personhood is no more a magic-bullet than
was the Brown v. Ferguson ruling, or the passing of the Fourteenth
Amendment itself. As long as there is a society there will be
struggle over how resources, including political powers, are allocated.
Ending corporate personhood and corporate constitutional rights
would result, not in a level playing field, but in a field where
We the People have the advantage again, where in any particular
issue that is fought out in the public arena, the people are more
likely to win than the owners of the corporations.

How We Can Revoke Corporate Personhood

Corporate personhood and corporate constitutional rights are
a lie. How do we get the courts and government to realize that?

The simple solution would be to somehow bring a case involving
only corporate personhood to the Supreme Court and ask them to
rule on it. Hopefully they would take a strict-constructionist
line and recognize that the Constitution does not mean corporations
when it says persons. This method is unlikely for a variety of
reasons, the foremost being that the current Supreme Court is
a product of the corporate-dominated legal system and appointees
are designated by corporate-dominated presidents and approved
by a corporate-dominated Congress. In addition, many roadblocks
have been built into the system to prevent such a case from even
coming to the Supreme Court. We would need a law in some State
or locality specifically denying corporations personhood, but
attorneys and judges have so far taken the view that any such
law would be outside the allowable bounds for local jurisdictions.
They can (and certainly will) advise elected officials that they
cannot even allow such a law to come up for a vote or referendum.

But neither did the railroad attorneys simply declare corporations
persons and a few days later have the Supreme Court agree with
them. Powerful as they were, it took them 15 years to get corporate
personhood enshrined in the system.

We will need a sustained grassroots campaign to abolish corporate
personhood. This campaign has barely begun. We can win with education
and action. We must try to pass laws abolishing corporate personhood
in every local government and in every state. We must argue before
the courts so that they become familiar with our ideas. We must
pass referenda and then protest when our referenda are struck
down by the corrupt judiciary. We must demand that elected representatives
take a stand against corporate personhood if they want the votes
of environmentalists, workers, and small business owners. And
we must argue our points in the law schools where future generations
of lawyers and judges are being trained.

Supreme Courts do not work in a vacuum. When the public cries
out for an issue to be tried the Supreme Court loses its prestige,
perhaps even its ability to govern the country, if it refuses
to hear the issue. Even if, in the first case, the Supreme Court
ruled in favor of corporate personhood, if they at least gave
an actual rational to their madness, we would be able to tear
it apart. We could focus on each point of their argument and bring
suits appropriate to overruling each point.

We could, and probably should, clarify our position by an Amendment
to the Constitution that clarifies the legal status of corporations.
Amending the Constitution is a very difficult process, but it
is the ultimate expression of the people=s
authority.

The corporate media will not be on our side; we must communicate
through our natural inter-connectivity as a grassroots campaign.

Other tactics are available besides education, legislation,
and lawsuits. We can find corporations that will publicly and
voluntarily renounce their corporate personhood. We can boycott
corporations that lead the fight to retain corporate personhood.
We can add civil disobedience and direct action to our campaign.
If a State revokes corporate personhood, and the Supreme Court
overturns them, we could refuse to participate in the federal
government and simply govern ourselves through the State government
until the Supreme Court sees the light.

The struggle to abolish slavery was long and difficult. Even
as abolitionists seemed to have won, by passing the 13th and 14th
Amendments, counterattacks were being prepared. Corporations were
pronounced persons in 1886, and in 1896 black people were declared
to be sub-persons. In the 20th century we have seen the emergence
of wage-slavery on a massive scale. We must ask ourselves: Are
corporations to be our masters? Or are we to be free? What price
are we willing to pay for our freedom, and what price do we pay
now for our ongoing subjugation?

The Abolition of corporate personhood is part of the abolition
of slavery. It is deeply connected to our need to save the earth
from environmental destruction. This is not an optional campaign.
Hard as it might be to fight now, it is better to fight now than
in 20 years when corporations are even more entrenched and the
average person has sunk even deeper into our modern style of slavery.

Frequently Asked Questions

What would be the immediate effect of revoking corporate
personhood?

The only immediate effect of revoking corporate personhood,
either at the state level or by the Supreme Court, would be to
cause the legal status of corporations to revert back to that
of artificial entities. (We should refuse to use the old terminology
of artificial persons.) They could still be represented in courts
by attorneys and would be subject to the law and taxation.

However, a whole body of Supreme Court decisions would have
to be re-examined. The ability of States, when granting or renewing
corporate charters, to restrict harmful activities of corporations
would be greatly enhanced. New legislation to protect the environment,
workers, small businesses, and consumers could be enacted without
worrying that it would be struck down by the Supreme Court.

How would small businesses be affected?

Small, incorporated businesses would become artificial entities
under the law. Most small businesses have gained no meaningful
advantage from corporate personhood. Small businesses do not have
the kind of money it takes to corrupt the political process that
large corporations have. Small businesses would be better situated
to protect their interests since laws favoring local businesses
over national and international corporations would become legal.

If corporations can't lobby, how can they get laws
that are fair to them?

Revoking corporate personhood would not immediately prevent
corporations from lobbying, but it would allow laws to be passed
(and enforced) that would restrict corporate lobbying and campaign
contributions. If a state legislature or Congress is considering
legislation that affects a particular industry they would be able
to hold hearings and interrogate corporate representatives. If
a corporation feels its needs a change in the laws, not for its
own profits but in order to insure competition or public safety,
it could petition the legislature to hold such a hearing.

What about past harms done by corporate personhood?

That is an interesting question with no certain answer. The
Constitution prohibits ex post facto laws (laws that punish for
deeds committed before the law was written), and properly so.
However, revoking corporate personhood does not create an ex post
facto law. It may be possible to force corporations to rectify
damage they did to the environment during the era of corporate
personhood.

Would the media lose its freedom of the press and free
speech?

The ruling that corporate ads on political and social issues
is free speech could be overturned, but the corporate media would
continue to have freedom of the press. New legislation would be
needed to restrict corporations to ownership of a single radio
or TV station, newspaper, or magazine and to insure that individual
and non-corporate voices could be heard as well.

Non-profit corporations would continue to operate as the artificial
entities that they are. However, it would be possible to restrict
for-profit corporations from working for corporate interests.

Why don't unions have corporate personhood?

Unions don't have corporate personhood, even though they are
also, legally, artificial entities, because unions have never
fought to get it. Unions have largely avoided the court system,
correctly seeing it as the home court of their enemies.

Why do you want to restrict the freedom of stockholders
and people who work for corporations?

This is a trick question. Corporate lawyers and propagandists
will try to get people who work for corporations to support corporate
personhood by lying to them about the effects of revocation. In
fact individuals, whether they work for corporations or not, will
retain all of the freedoms recognized in the constitution. In
addition, individuals will have their freedom enhanced by not
having their liberty overpowered by the rule of corporations.
Only the artificial entity of the corporation will be redefined
to have restrictions on its liberty.

Wouldn't we lose the power to tax and regulate corporations?

In the art of lying it is hard to surpass corporate lawyers.
They have managed to place in the minds of law students, in the
texts of some law books, and in the public mind, the idea that
corporate personhood is necessary to bring corporations under
rule of law. This is such a big lie it is amazing that they can
tell it with a straight face. Corporations were taxed when they
were artificial entities, long before they were granted personhood.
They were more subject to the rule of law, not less, before receiving
personhood. Read up on the history; don't be fooled again.

November 13, 2000

This work has been placed in the public domain. It may be reproduced
in whole or in part by anyone for any reason.

For more information on ending corporate dominance
and corporate personhood visit the Redwood Coast Alliance For
Democracy web site: http://www.iiipublishing.com/alliance.htm

Published by III Publishing
POB 1581
Gualala, CA 95445

In addition to reading the opinions of the justices in the
Supreme Court cases discussed (which can be found on the Internet
at www.findlaw.com or at
most public, college and law libraries), for those who want a
deeper legal understanding of the issue I highly recommend:

"Personalizing the Impersonal: Corporations and the Bill
of Rights" by Carl J. Mayer, The Hastings Law Journal,
March 1990